Terms and Conditions

This document defines the terms and conditions (“Terms”) for ShopSocially Customer Agreement made as of the Effective Date, by and between, Velocita Inc. d/b/a ShopSocially (“ShopSocially”), a California Corporation with its principal place of business at 4701 Patrick Henry Drive, Suite 1901, Santa Clara, CA 95054 and Customer (also interchangeably referred to as “Partner” or “Merchant”). ShopSocially Customer Agreement has also been interchangeably referred to in the past as the “ShopSocially Campaign Insertion Order” or “ShopSocially Insertion Order”.

WHEREAS, ShopSocially is a scalable social, referral and loyalty platform to help Customer with their marketing needs,
WHEREAS, the Customer is interested in integrating with ShopSocially,
WHEREAS, Customer and ShopSocially have signed a separate ShopSocially Customer Agreement, or entered into a separate payment arrangement via credit card or other means.
Customer and ShopSocially agree that the ShopSocially Customer Agreement or the payment arrangement will be governed by the following terms and conditions:

1. Definitions

“Agreement” means ShopSocially Customer Agreement including the Terms defined in this document.

“Customer” means Customer company as defined in the ShopSocially Customer Agreement or in a separate payment arrangement.

“Effective Date” means the effective date defined in the ShopSocially Customer Agreement. This is the date on which the parties have entered into the Agreement.

“ShopSocially Site” means the site owned and operated by ShopSocially.

“Buyer” means a user buying a product or services at the Customer Site.

2. ShopSocially Services

ShopSocially shall provide one or more of services as described herein, specifically:

A. Enable shoppers to engage with loyalty and referral programs. B. Enable shoppers to share purchases, promotions with other online users including, but not limited to Facebook users, Twitter users and ShopSocially users. C. Enable shoppers to make better buying decisions by asking their friends. D. Motivate shoppers to become Facebook fans or subscribe to email or twitter lists. E. Analyze, optimize and report user engagement metrics to Customer. F. Any other social, referral or loyalty applications that are delivered via the ShopSocially platform.

3. License

A. Customer hereby grants ShopSocially a non-exclusive, non-sublicensable, non-transferable, revocable, limited license to use any Customer Marks or content only in the form and manner provided by and pre-approved by Customer in writing for the sole purpose of providing the ShopSocially Services pursuant to the Agreement.B. ShopSocially hereby grants Customer a non-exclusive, non-sublicensable, non-transferable, revocable, limited license to use any ShopSocially Marks or content only in the form and manner provided by and pre-approved by ShopSocially solely in connection with the ShopSocially Services and the Agreement.C. ShopSocially hereby grants Customer a non-exclusive, non-sublicensable, non-transferable, revocable, internal, limited license to use the ShopSocially Code provided to Customer by ShopSocially for the sole purpose of enabling the ShopSocially Services, to make one (1) backup copy for archival purposes, and to modify solely as required to implement such code on the Customer Site or diagnose any performance issues on Customer Site.D. Customer shall not (i) publicly perform or display the ShopSocially Code or use, copy or modify the ShopSocially Code other than as expressly permitted under Section 3C above, (ii) distribute, rent, lease or transfer the ShopSocially Code to any third party, (iii) decompile, reverse engineer, disassemble or otherwise determine or attempt to determine the source code of the ShopSocially Code, (iv) analyze or use the ShopSocially Code to build a similar or competitive product or service, or (v) permit or assist any other party to do any of the foregoing. Customer shall not remove the ShopSocially Code from the Customer Site during the term of the Agreement.

4. Ownership

Customer acknowledges and accepts that, as between the parties hereto, ShopSocially owns all right, title, and interest in and to the ShopSocially Code, the ShopSocially Services, including but not limited to all content or any material created or provided to Customer by ShopSocially under the Agreement, together with all intellectual property rights therein. Customer hereby grants to ShopSocially a royalty-free, sublicensable, transferable, irrevocable, perpetual right and license to use and/or incorporate into the ShopSocially Services any modifications, enhancements, ideas or suggestions that Customer or its employees, contractors, agents or customers request, recommend or otherwise suggest to ShopSocially relating in any way to the operation, features or functionality of the ShopSocially Code and the provision of ShopSocially Services (including the right to copy, modify, distribute and publicly perform and display any such modifications, enhancements, ideas and/or suggestions).

5. Setup and Integration

Customer shall implement the technical requirements for use of the ShopSocially Service in a mutually agreed timeframe.

6. Representations and Warranties

A. ShopSocially hereby represents and warrants as follows: i. ShopSocially has all necessary and legal rights, powers, and authority to accept and be bound by the Agreement; and ii. ShopSocially is in compliance with all applicable advertising laws, rules, and regulations including without limitation California’s Online Privacy Protection Act of 2003, and any applicable data protection or privacy laws.

B. Customer hereby represents, warrants and covenants the following: i. Customer has all necessary and legal rights, powers, and authority to accept and be bound by the Agreement; ii. Customer is and will remain in compliance with all applicable federal, state, and local laws, rules, and regulations including without limitation California’s Online Privacy Protection Act of 2003, and any applicable data protection or privacy laws; and iii. Customer shall notify ShopSocially promptly in the event it encounters any performance issues with respect to the ShopSocially Code or ShopSocially Services.

C. Warranty Disclaimer. Except for the express warranties set forth in the agreement, neither party makes any other warranty, express, implied or statutory, with respect to the goods or services provided here under, and each party disclaims any and all implied warranties with respect to such goods and services including without limitation any implied warranty of merchant ability, fitness for a particular purpose or non-infringement.

7. Payment Terms

Payment from Customer to ShopSocially

A. ShopSocially and Customer shall mutually agree upon the payment structure and terms for the services provided under these Terms, which will be set forth in the ShopSocially Customer Agreement or in a separate agreement between the parties.
B. If during any period there is a discrepancy of more than 5% between the amount of payment due as calculated by ShopSocially and the corresponding numbers as reported by the Customer, both parties will work in good faith to identify the cause and resolve it. If such an analysis reveals an underpayment by Customer for current of previous months, Customer shall immediately pay the remaining balance due to ShopSocially.
C. If Customer fails to pay fees owed to ShopSocially within two (2) months following the payment due date, ShopSocially shall have the option, without prior notice or warning, (i) to terminate the Agreement, and/or (ii) to suspend the ShopSocially Services.

8. Data

Customer acknowledges and accepts that ShopSocially shall own any data collected in connection with providing the ShopSocially Services (“Data”) and shall have the right to disclose such Data in aggregate form; provided, however, that ShopSocially shall not disclose any such Data to third parties that uniquely identifies the Customer.

9. Limitation of Liability

UNDER NO CIRCUMSTANCES WILL EITHER PARTY OR ANY OF ITS AFFILIATES OR AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUES, LOSS OF GOODWILL, DEFAMATION, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR LOSS OR DAMAGE TO DATA THAT ARISE FROM ANY ASPECT OF PARTNER’S USE OF SHOPSOCIALLY SERVICES OR ANY BREACH OR ERROR BY SHOPSOCIALLY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SHOPSOCIALLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING FROM ANY ASPECT OF THE AGREEMENT. This limitation on such damages and liability shall apply whether or not ShopSocially is able to correct any problem or error, or the failure of the essential purpose of any other remedy, it being the intention of the parties to allocate the risk of such damages as provided herein in all circumstances, and Customer acknowledges that ShopSocially would not have entered into the Agreement but for this limitation on such damages. EXCLUDING THE PARTIES’ OBLIGATIONS UNDER SECTION 11, BUT NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT, THE LIABILITY OF EITHER PARTY WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY PARTNER TO SHOPSOCIALLY UNDER THE AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE LIABILITY FIRST AROSE. ShopSocially will not be liable for delays in delivery and/or non-delivery in the event of an Act of God, actions by any governmental or quasi-governmental entity, Internet failure, equipment failure, power outage, fire, earthquake, flood, insurrection, riot, act of terrorism, act of war, explosion, embargo, strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slow-down, or any condition beyond ShopSocially’s control affecting production or delivery in any manner.

10. Confidentiality

“Confidential Information” means any information disclosed to Customer by ShopSocially or to ShopSocially by Customer, either directly or indirectly, in writing, orally, by inspection of tangible objects or by data feed or other electronic means, other than information that the receiving party can establish (i) was publicly known and made generally available in the public domain prior to the time of disclosure to Customer by ShopSocially or to ShopSocially by Customer; (ii) becomes publicly known and made generally available after disclosure to Customer by ShopSocially or to ShopSocially by Customer through no act of the receiving party; (iii) was in the receiving party’s possession, without confidentiality restrictions, at the time of disclosure by ShopSocially or by Customer as shown by files and records immediately prior to the time of disclosure; or (iv) consists solely of data aggregated with other data which is not Confidential Information, provided that the aggregated data are presented in a manner that does not identify the party or parties to whom the data relate. For purposes of clarity, any Data that does not identify the Customer shall not be considered Confidential Information hereunder. Neither ShopSocially nor Customer shall at any time (a) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information it receives from the other party; (b) use any Confidential Information received from the other party for any purpose other than in connection with providing or benefiting from the services under the Agreement; or (c) reproduce or otherwise copy any Confidential Information received from the other party, except as necessary in connection with the purpose for which such Confidential Information is disclosed under the Agreement or as required by applicable law. Each party agrees to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the other party’s Confidential Information and to limit access to the other party’s Confidential Information to those of its employees and contractors who have a need to know and who are subject to a confidentiality agreement with it containing terms substantially similar to those in this Section 10. All Confidential Information shall at all times remain the personal property of the disclosing party and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to the disclosing party immediately upon the termination of the Agreement or, if earlier, the disclosing party’s request.

11. Indemnification

ShopSocially Indemnification Obligations: ShopSocially will indemnify, defend and hold Customer, and Customer’s officers, directors, employees, and agents harmless from and against any and all liability, loss, damage, claim and expenses (including, but not limited to, reasonable legal fees) (collectively “Losses”) arising out of or related to claims brought by a third party resulting from (a) ShopSocially’s breach or alleged breach of any of its representations and warranties in the Agreement or (b) the infringement by the ShopSocially Code of any valid third party U.S. patent or copyright. Notwithstanding the foregoing, ShopSocially shall have no obligation hereunder with respect to any infringement claims to the extent resulting from (i) any unauthorized use, reproduction, modification, or distribution of the ShopSocially Code by the Customer, or (ii) any use of the ShopSocially Code by the Customer in combination with products not supplied by ShopSocially, and in such event Customer shall indemnify, defend and hold ShopSocially (and its officers, directors, employees and agents) harmless from and against any and all Losses arising out of or related to such claims.Customer Indemnification Obligations: Customer will indemnify, defend and hold ShopSocially, and ShopSocially’s officers, directors, employees, and agents harmless from and against any and all Losses arising out of or related to claims brought by a third party resulting from (i) Customer’s breach or alleged breach of any of its representations, warranties or covenants in the Agreement; or (ii) the infringement or alleged infringement of any third party’s patent, copyright, trademark, intellectual property or other proprietary rights resulting from any Customer Content (“Customer Infringement Claim”), unless such Customer Infringement Claim would not have arisen but for any unauthorized use, modification or alteration by ShopSocially of any Customer Content. Each of ShopSocially’s and Customer’s indemnification obligations here under shall be subject to the indemnified party (i) providing prompt written notice to the indemnifying party of the existence of any claim; (ii) giving the indemnifying party exclusive control over the defense of such claim; (iii) not entering into any settlement or compromise of any such claim without the prior written consent of the indemnifying party; and (iv) providing full cooperation and all reasonable assistance to the indemnifying party in the defense thereof at the cost of the indemnifying party.

12. Intellectual Property Rights

Other than set forth in the Agreement, Customer shall not have or obtain any rights, title or interest in ShopSocially’s intellectual property or any derivative works thereof.

13. Termination

Unless specified otherwise in the ShopSocially Customer Agreement, the term of the Agreement shall be for a period of one (1) year from the Effective Date (“Initial Term”). Unless either party provides a written notice at least ninety (90) days prior to the end of the Initial Term or any renewal term of its intention not to renew the Agreement, the Agreement shall automatically renew for successive one (1) year terms. Either party may terminate the Agreement for any or for no reason provided the non-terminating party receives a written notice of termination from the terminating party within thirty (30) days from the Effective Date of the Initial Term. Upon the termination of the Agreement, all licenses granted hereunder shall concurrently terminate and each party shall return promptly to the other party all Confidential Information of the other party that it has obtained here under, together will all copies thereof.

14. General

A. Entire Agreement; Conflict: The Terms, together with any applicable ShopSocially Customer Agreement, represents the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements, whether written or oral, pertaining to the subject matter hereof. If any terms of the ShopSocially Customer Agreement conflict with the Terms, the terms described in the ShopSocially Customer Agreement will prevail.B. Publicity: Neither party will issue any publicity concerning this relationship or shall have the right to use other party’s name and logos in general marketing materials without the prior written consent of the other party; provided, however, that ShopSocially shall have the right to use Customer’s name and logos in general marketing materials related to the ShopSocially Service.C. Notice: All notices, demands and other communications provided for or permitted under the Agreement shall be made in writing to the parties at the addresses specified on the Agreement.D. Assignment: The Agreement may be assigned by either party without consent (a) to a person or entity who acquires, by sale, merger or otherwise, all or substantially all of such party’s assets, stock or business, or (b) to an affiliate of the assigning party. Any other assignment of the Agreement shall require the consent of the non-assigning party, which may not unreasonably withheld or delayed. Subject to the foregoing, the Agreement shall bind and inure to the benefit of the parties, their successors and permitted assigns.E. Miscellaneous: Neither party shall be deemed to be a partner, joint venture or agent of the other. If any provision of the Agreement is held to be unenforceable, that provision shall be enforced to the maximum extent permissible and all other provisions shall remain in effect. The Agreement shall be governed by the laws of California. The jurisdiction and venue for all disputes hereunder shall be the state and federal courts in Santa Clara County, California. The Agreement may only be amended in a writing signed by both parties. Sections 1, 3D, 4, 6, 7, 8, 9, 10, 11, 12 and 14 of the Agreement shall survive the termination or expiration of the Agreement.